State Ex Rel. Saint v. Dowling , 167 La. 907 ( 1928 )

The defendant has filed a plea of no right of action, in which he directs our attention to the fact that Dr. O'Hara's right of action — or right to claim the office of president of the state board of health — has abated. There is submitted with the motion a certified copy of the Senate Journal, showing that an extra session of the Legislature was convened on the 10th day of December and adjourned on the 16th, and that the appointment of Dr. O'Hara as president of the state board of health, made during a recess of the Senate, was not confirmed. In fact, the Governor did not send to the Senate the name or nomination of Dr. O'Hara for confirmation as president of the state board of health; and, according to the language of the Constitution (article 5, § 12), the failure of the Governor to send to the Senate the name of any person appointed to office during a recess of the Senate is equivalent to a rejection, and the person so "nominated for office and rejected" is not eligible to be appointed to the same office during a recess of the Senate, or except by and with the advice and consent of the Senate. The eleventh section of article 5 of the Constitution authorizes the Governor to nominate, and, by and with the advice and consent of the Senate, to appoint, all officers whose offices are created by the Constitution and whose appointment or election is not otherwise provided for in the Constitution; and the twelfth section allows the Governor to make temporary appointments during a recess of the Senate, viz.:

"Section 12. The Governor shall have the power to fill vacancies that may occur during the recess of the Senate, in cases not otherwise provided for in this Constitution, by granting commissions which shall expire at the end of the next session; but no person who has been nominated for office and rejected shall be appointed to the same office during the recess of the Senate. The failure of the Governor to send to the Senate the name of any person appointed to office, as herein provided, shall be equivalent to a rejection."

It is true that "the next session" of the Senate, held after the appointment of Dr. O'Hara, was an extra session, but the language of the Constitution does not make or admit of any exception in that respect. The language is that the authority of the Governor to make appointments during a recess of the Senate is limited to the "granting of commissions which shall expire at the end of the next session." The writers of the Constitution were well aware that "the next session" of the Senate, after the making of recess appointments by the Governor, might be an extra session, as distinguished from a regular session; and, if the writers of the Constitution had intended to extend the authority of the Governor, in the making of recess appointments, so as to allow him to grant commissions which should not expire until the end of the next "regular" session of the Senate, the writers of the Constitution would have written it so. This court decided, in March, 1873, in the well-known case of State ex rel. Morgan v. Kennard, 25 La. Ann. 238, that the words "at the end of the next session" were not at all ambiguous — and meant literally and exactly what they said — and that the court had no authority to change the language so as to reed "at the end of the next regular session." The court was dealing with article 61 of the Constitution of 1868, which declared:

"The Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of the next session thereof, unless otherwise provided for in this Constitution," etc.

Four constitutional conventions, that of 1879, that of 1898, that of 1913, and that of 1921, have adopted that exact language, "by granting commissions which shall expire at the end of the next session," and have not seen fit to change the language to "next regular session," since this court announced, in State ex rel. Morgan v. Kennard, in March, 1873, that the words "next session" did not mean only "next regular session," but meant "next session" — whether a regular or special session. Each one of the four constitutional conventions, therefore, used the words "next session" with the knowledge that the words were held by the Supreme Court of the state to mean, not only "next regular session," but literally "next session" — whether a regular or special session. If the members of the Constitutional Convention of 1879, or of 1898, or of 1913, or of 1921, were not satisfied with the meaning which this court had given to the words "next session," surely they would have used the words "next regular session." It cannot be supposed that every delegate in those four constitutional conventions was ignorant of the decision which this court had rendered in the cause célèbre, entitled State ex rel. Morgan v. Kennard. It was deemed an important part of the history of the Supreme Court of Louisiana, by Henry Plauche Dart. See Centenary of Louisiana Supreme Court, p. 30. Governor Warmoth, during a recess of the Senate, appointed John H. Kennard a Justice of the Supreme Court, to succeed Justice W.W. Howe, who had resigned. The Justices of the Supreme Court were then (according to article 75 of the Constitution of 1868) appointed by the Governor, "by and with the advice and consent of the Senate." Governor Warmoth was impeached, and, pending the impeachment proceedings, P.B.S. Pinchback, acting Governor, having been elected President of the Senate, and having become Lieutenant Governor by the death of Lieutenant Governor Oscar J. Dunn, appointed Philip Hickey Morgan to the judgeship made vacant by the resignation of Howe. The next session of the Legislature, after the appointment of Kennard and of Morgan, happened to be an extra session, and, at that session, the Senate confirmed the appointment of Morgan, and not the appointment of Kennard. Meantime, Kennard had taken the oath of office and was serving as a Justice of the Supreme Court. Morgan and the Attorney General brought suit against Kennard under a statute (Act of January 15, 1873 [Act No. 39 of 1873]) similar to the statute under which the present suit was brought. The question in the case was whether Justice Kennard's commission had expired at the end of the extra session or should continue in force until the end of the next regular session of the Senate; and that depended upon whether the Senate had authority to confirm appointments in an extra session of the Legislature. The court decided in favor of Justice Morgan, saying:

"The language of the Constitution seems too clear to admit of but one construction — ``until the end of the next session of the Senate.' It is not denied that there was an extra session of the General Assembly convened on the ninth day of December, 1872; but it is contended that the Constitution in article sixty-one refers to ordinary or regular sessions. The Constitution authorizes the Governor to convene the Legislature on extraordinary occasions. There is no reason therefore to say that article 61 refers only to the regular or annual sessions of the General Assembly — and we cannot construe article 61 in the manner contended for by the defendant, without interpolating the words regular or ordinary in the article — which, of course, we cannot do. It is manifest from article 75 of the Constitution that it was the intention of the framers of the Constitution that the judges of the Supreme Court should be appointed by the Governor, ``with the advice and consent of the Senate,' and article 61 provides for a contingency which might arise, but it limits the duration of the commission of the officer, appointed when the advice of the Senate could not be had, to the end of the ``next session of the Senate,' during which session the Governor can, if he wishes, have the advice of the Senate. This limitation was a restriction upon the power conferred upon the Governor ex necessitate rei. There is no merit in the defense."

The only criticism that is made by counsel for the plaintiff in this case, of the decision rendered in State ex rel. Morgan v. Kennard, is that it was rendered by a carpet-bag court. That is true, but the decision itself was only an adherence to the plain language of the Constitution, which should speak for itself. There were no carpet-baggers in the several constitutional conventions which have approved the court's ruling in State ex rel. Morgan v. Kennard, by using in all subsequent Constitutions the same language which was used in article 61 of the Constitution of 1868. If any of the four constitutional conventions held since this court decided the case of State ex rel. Morgan v. Kennard had not approved of that decision, they would have done what the court had no right to do — they would have interpolated the word "regular" or "ordinary," so as to allow the Governor, in making recess appointments, to issue commissions which would not expire until the end of the nextregular session of the Senate.

The same literal construction was put upon the language of article 61 of the Constitution of 1868 in State ex rel. Meyer v. Van Tromp, 27 La. Ann. 569; the facts of the case being stated in the opinion, thus:

"When the Senate was in recess, a vacancy occurred in the office of recorder of the parish of West Feliciana. Van Tromp was appointed to fill it. The Governor afterward convened the Legislature in extra session. At this session he nominated J.C. Meyer for the office. The nomination was confirmed, and a commission was issued to him.

"Van Tromp claims that the appointment of Meyer was illegal, and refuses to give him up the office.

"The vacancy having occurred when the Senate was not in session, the nomination to fill the same was properly made at the called session, which was the ``next session,' after the vacancy occurred. To fill this vacancy the Governor had the power to nominate whom he pleased, and this without regard to any appointment he might have made during the recess."

The attorneys for Dr. O'Hara contend in their brief that the Senate had not the authority to confirm his appointment at the extra session because the confirming of appointments was not mentioned in the Governor's call for the extra session, as one of the objects of calling the extra session. I believe that every member of the court agrees with me that the limitation upon "the power to legislate," in the second paragraph of the fourteenth section of article 5 of the Constitution has nothing to do with the power to confirm appointments made by the Governor. The language of the Constitution is: "The power to legislate, under the penalty of nullity, shall be limited to the objects specially enumerated in the proclamation of the Governor," etc. Confirming appointments is not an exercise of the power to legislate. The power to legislate is not given to the Senate, except in concurrence with the House of Representatives. The power to confirm appointments made by the Governor is vested in the Senate alone, and is only an administrative function.

It is admitted in the brief of the plaintiff, and is a historical fact, that, heretofore, in every extra session of the Legislature, the Senate has confirmed recess appointments made by the Governor; and it is admitted that in some instances the confirming of appointments was mentioned in the Governor's proclamation and in other instances it was not so mentioned. It is admitted that the recess appointments made by Governor Simpson were confirmed by the Senate in the extra session of 1927, without any mention thereof being made in the Governor's call for the extra session; but it is said in the plaintiff's brief that all of the Simpson appointees, who were confirmed by the Senate in the extra session of 1927 resigned on request. I am sure that that is a mistake, for Governor Simpson made 50 recess appointments of notaries public, whose appointments were confirmed by the Senate in the extra session of 1927, and none of them has resigned or been removed from office.

Article 69 of the Constitution of 1879 was exactly like the twelfth section of article 5 of the present Constitution. It declared that the Governor had the power to fill vacancies that might happen during a recess of the Senate, by granting commissions which should expire "at the end of the next session," and that any person nominated for office by the Governor and rejected by the Senate could not be appointed to the same office during a recess of the Senate, and that a failure of the Governor to send to the Senate the name of any person appointed to office should be equivalent to a rejection. In the case of State v. Powell, 40 La. Ann. 241, 4 So. 447, in March, 1888, Mr. Justice Fenner, for the unanimous court, composed of Chief Justice Bermudez and Justices Poche, Fenner, Watkins, and McEnery, construed the language of the Constitution literally, and said:

"Under article 69 of the Constitution, the term of an officer appointed by the Governor during the recess of the Senate cannot extend beyond the end of the next ensuing session of the Legislature; and where the same name is subsequently sent to the Senate and confirmed, and a new commission is issued, the latter is a distinct appointment and requires a new bond."

According to that decision — which is in accord with the precise language of the present Constitution — Dr. O'Hara's commission as president of the state board of health, under his recess appointment, expired at the end of the last session of the Legislature, and he is not now eligible to hold the office under a recess appointment. The Governor has the authority to appoint some one else during the recess of the Senate, or he may appoint Dr. O'Hara with the advice and consent of the Senate, at its next session, whether it be a called session or the regular session; but Dr. O'Hara does not now hold — and is not eligible to hold — a recess appointment to the office.

The jurisprudence in the other states is entirely in accord with the opinion which I am now expressing. In the matter entitled In re Advisory Opinion to the Governor, 64 Fla. 16, 59 So. 782, where the Governor of Florida asked for an opinion as to whether he should submit his nominations of certain officers to the Senate in a special session of the Legislature, or whether the appointments which he had made during the recess of the Senate would remain in force until the end of the next regular session, under constitutional provisions similar to ours, the court replied:

"When the Legislature is convened in extra session by executive proclamation, it is the duty of the Governor under the Constitution to transmit to the Senate, for its action thereon, appointments to the offices of circuit judge, state attorney and judge of the criminal court of record that have been made since the adjournment of the last session of the Senate.

"Under Const. art. 4, § 8, relating to extra sessions of the Legislature, and providing that it shall transact no ``legislative business' other than that for which it is especially convened, or which is called to its attention by the Governor, except by a two-thirds vote of each house, the confirmation by the Senate of executive appointments to office cannot be regarded as ``legislative business,' since such confirmation is not essentially legislative in its nature, and does not require the co-operation of the House of Representatives.

"The Constitution clearly contemplates joint action by the Governor and Senate in the matter of these appointments, when possible and as soon as possible, and the provision for a locum tenens until the Senate may act requires the construction that the Senate should be permitted to act when next in session, however convened."

In People ex rel. Knight v. Blanding, 63 Cal. 333, it was held:

"The constitutional limitation on the power of the Legislature when convened in extra session applies only to acts of legislation — the joint action of the Senate and Assembly. Whenever the Legislature is lawfully convened, the Senate may confirm appointments made by the Governor."

In State v. Williams, 20 S.C. 12, where the Constitution provides that "the Governor shall appoint, by and with the advice and consent of the Senate, if in session, and, if not in session, subject to the approval of the Senate at its next session," the court held that the words "next session" meant the next session, in fact, whether regular or special session.

In State ex inf. Major, ex rel. Sikes v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006, it was held:

"The confirmation by the Senate of appointments made by the Governor are not legislative acts, and in our opinion can be made as well at a special session as a regular session. Such acts by the Governor concerning appointments are merely administrative and can be confirmed by the Senate whenever that body is in session, and it is immaterial for what purpose the legislative body may have been called in session. In other words, whenever the body is lawfully convened for legislative purposes it has the right to act for administrative purposes, even without mention of such purpose in the call for a special session."

The case of State v. Boucher, 3 N.D. 389, 56 N.W. 142, 21 L.R.A. 539, is quoted in 22 R.C.L. 433, § 84, thus:

"If, on the expiration of the term of office of a public officer, an appointment of a successor is made by the Governor but it is not confirmed by the state Senate as required by a law of this type, such successor does not obtain the right to enter on the duties of the office, but the former incumbent may hold over until a successor is properly appointed and confirmed."

Every member of the court — as I understand — agrees with me that the Senate has the same authority in an extra session as in a regular session of the Legislature to confirm appointments made by the Governor. The Senate does not in truth confirm appointments made during the recess of the Senate, but confirms the nominations made by the Governor and submitted to the Senate in session. As this court held in the case of State v. Powell, 40 La. Ann. 241, 4 So. 447, when the name of a person who was appointed to office during a recess of the Senate is sent to the Senate and confirmed, "the latter is a distinct appointment and requires a new bond," for the recess appointment, which was made without the advice or consent of the Senate, has expired — according to the precise language of the Constitution.

The prevailing or majority opinion of the court seems to be that the Governor had the authority either to submit his recess appointments to the Senate in the extra session or to withhold them until the next regular session, and that, if he saw fit to withhold them, the commissions remained in force until the next regular session. That opinion is not only contrary to the decision rendered in State v. Powell, supra, but is contrary to the plain language of the Constitution, which declares that the Governor's authority to appoint during a recess of the Senate is limited to the granting of commissions which shall expire at the end of the next session of the Senate, and which emphasizes that by declaring that his failure to send a name or nomination to the Senate shall be equivalent to a rejection, and that the person so rejected shall not be appointed to the same office during the recess of the Senate — or without the advice and consent of the Senate.

It cannot be doubted that the defendant in this case has the right — for in fact it is his duty — to direct our attention to the fact that the right of Dr. O'Hara to take possession of the office of president of the state board of health — assuming that the statute under which he was appointed is valid legislation — has expired by the decision of the Governor not to have the appointment of Dr. O'Hara confirmed by the Senate. The only ground for this suit to remove Dr. Dowling was that Dr. O'Hara was appointed as his successor. The office was not abolished by the Act 126 of 1928, under which Dr. O'Hara was appointed during the recess of the Senate. The office is not vacant. Dr. Dowling is not disqualified, or subject to removal. He has remained in office under a valid appointment, and, under the sixth section of article 19 of the Constitution, he must continue to discharge the duties of the office until his successor "shall have been inducted into office." He is not amenable to any penalty for having exercised his constitutional right to remain in office while he tested in the courts the constitutionality of the statute which purported to shorten his term of office. The fact that Dr. O'Hara's commission was allowed to expire before he could take possession of the office is not attributable to any fault or wrong-doing on the part of Dr. Dowling; it was the result of the Governor's exercise of his privilege not to have Dr. O'Hara's appointment confirmed by the Senate.

The Attorney General has no right to continue the prosecution of this suit since the coplaintiff is not "rightfully entitled to the office." Section 2597 of the Revised Statutes, as amended by the Act 102 of 1928, p. 125, declares that the Attorney General, in a suit like this, "must set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto." That section of the Revised Statutes, before it was amended, said: "May also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto." Therefore, since the amendment, if the office is not abolished, or vacant, and if no one — other than the incumbent — is "rightfully entitled to the office," the Attorney General has no authority to proceed merely to bring about a vacancy in the office, or to install some one who is not entitled to the office.

It cannot be contended seriously that, while this case is pending on an application for a rehearing, it is too late for the defendant to plead that the plaintiff has lost his right of action. The loss of the plaintiff's right of action did not occur until the case was pending on an application for a rehearing — when the Senate adjourned without having confirmed the appointment of Dr. O'Hara. We have no right now to place Dr. O'Hara into possession of the office of President of the state board of health, since his commission has expired, and the Governor did not see fit to send in his name or nomination for confirmation by the Senate. As long ago as 1826, in the case of Brown Sons v. Saul's Syndics, 4 Mart. (N.S.) 434, this court said:

"All dilatory and declinatory pleas ought to precede the contestatio litis; and even peremptory exceptions should be regularly pleaded; but a total want of legal right in a suitor, in relation to the matters in litigation, ought to be taken into consideration and acted on by courts of justice, at any stage of a cause. They should not remain silent spectators of infringements of the true principles of laws, which they are appointed to administer."

Again, in Union Bank v. Dunn, 17 La. 234, in 1841, it was said:

"An exception which goes to the absolute want of any right in the plaintiff to stand in judgment in any manner, may be pleaded after issue joined on the merits, or at any stage of the cause." (The italics are mine.)

This court has as complete control over a case that is pending on an application for a rehearing — and has the same right to dismiss it or to make any other proper disposition of it — as at any other stage of the appeal. It was so said in Bloomfield v. Thompson, 134 La. 923, 64 So. 853, viz.:

"An application for rehearing in a case which has been decided by the Supreme Court has the effect of preventing the judgment from becoming final, in whole or in part, whilst the court is deliberating thereon; and, even though the rehearing be granted in terms restricting it to particular issues, the whole case remains under the control of the court, since such restriction must be construed to mean, merely, that the court desires to hear further argument upon the issues that are specified, and not upon others."

In La Casse v. New Orleans, T. M. Railroad Co., 135 La. 129, 64 So. 1012, it was said:

"A total absence of a right of action may be urged at any stage of the cause, and so on appeal," etc.

Again, in Veasey v. Peters, 142 La. 1012, 77 So. 948, the court repeated:

"A total lack of a cause of action may be taken advantage of by exception at any stage of the proceeding, even in the Supreme Court."

Again, in State v. Winehill Rosenthal, 147 La. 785, 86 So. 182, we said:

"It is settled by a long line of decisions of this court that an exception of no cause or right of action, being a peremptory exception founded on law, may be pleaded at any time before final judgment has been rendered, even in the appellate court."

It will not do to say that we have not the evidence before us that the plaintiff's commission as president of the state board of health has expired. It is a historical fact, which we are bound to take notice of, that an extra session of the Legislature was convened on the 10th and adjourned on the 16th day of December, 1928, and it is shown by the official journal of the Senate, and is not denied, that the Governor did not see fit to send the name or nomination of Dr. O'Hara to the Senate for confirmation as president of the state board of health. We have the knowledge, therefore, judicially, that Dr. O'Hara is not entitled to be sent into possession of the office.

I have written this opinion without having seen any written reason which the majority of the members of the court may have for refusing either to grant a rehearing or to dismiss the suit. My belief is that no decision of any court, or opinion of any law writer, or statute law on the subject, can be cited to justify a refusal either to grant a rehearing or to dismiss this suit. I am assuming, from the discussion of the matter in consultation, that a majority of the members of the court will refuse either to grant a rehearing or to dismiss the suit.

If the suit should not be dismissed because the plaintiff's right of action has abated, a rehearing ought to be granted on the question as to whether Dr. Dowling or Dr. O'Hara is entitled to the salary of the president of the state board of health during the time when Dr. O'Hara held a commission under his recess appointment, which expired at the end of the session of the Senate. That question was not discussed, either in the oral arguments or in the briefs filed before we handed down our opinion, and was lost sight of in our decision of the case, because of the more important question of constitutionality of the statute under which Dr. O'Hara was appointed. Our attention is now called to the fact that, as amended by the third section of the Act 102 of 1928, section 2597 of the Revised Statutes does not allow the court to deprive an incumbent in office of the emoluments received by him during the pendency of a suit to oust him, except "on proof that the defendant is in bad faith in holding or attempting to retain possession of a public office and in such bad faith has received fees or emoluments belonging to said office." There is no proof, nor reason to assume, that Dr. Dowling was not in good faith in urging, in defense of this suit, that the statute which purported to shorten his term of office was unconstitutional. Before that section of the Revised Statutes was amended by the act of 1928, it declared merely: "And in such case on proof that the defendant has received fees or emoluments belonging to said office, an order may be granted," etc. The right of the plaintiff to recover the emoluments of the office was not then — as it appears to be now — dependent upon the bad faith of the incumbent who received the fees or emoluments of the office. On that question, the defendant in this case is entitled to a hearing, if the suit should not be dismissed — as I think it ought to be — for want of a right of action on the part of the plaintiff.

Since the above opinion was written, the Attorney General has filed a brief in this case, admitting that, under the plain language of the Constitution, as interpreted unanimously by the courts, Dr. O'Hara's commission expired at the end of the extra session of the Legislature. The attorneys for Dr. Dowling, therefore, have filed a supplemental motion to dismiss the suit on that additional ground.

As the Attorney General is the only party representing the state — and the only person or official having authority to represent the state — in this proceeding, I cannot imagine any reason that could be given now in justification for refusing to dismiss the suit. It cannot be said that Dr. Dowling has no interest in demanding a dismissal of the suit. He is the only person who has the right to demand that the suit be dismissed. He is the incumbent in office, and, as such, it is his duty, under the sixth section of article 19 of the Constitution, to continue to discharge the duties of the office until his successor shall have been inducted into office. It is admitted by the Attorney General that, under the plain language of the Constitution, Dr. O'Hara is not now entitled to be inducted into office.

Since writing the foregoing opinion, I have been shown a copy of the so-called per curiam, giving the reason for which a majority of the members of the court intend to overrule the defendant's motion to dismiss this suit. The only reason given is that it was not compulsory for the Governor to send to the Senate the names of his recess appointees, for confirmation, at the extra session of the Legislature. It is conceded, in this so-called per curiam, that the Senate had the authority, under the twelfth section of article 5 of the Constitution, to confirm the executive appointments made during the preceding recess of the Senate, because the extra session of the Legislature was the "next session," within the meaning of the Constitution. Hence it is conceded by the majority of the members of the court that, if the Governor had seen fit to send to the Senate the names of his recess appointees, for confirmation, at the extra session of the Legislature, and if the Senate had confirmed the appointments, the confirmations would have been valid. To say that it was notcompulsory for the Governor to send to the Senate the names of his recess appointees, for confirmation, at the extra session of the Legislature, in the sense that the failure of the Governor to send to the Senate the name of any person appointed to office was not equivalent to a rejection, is nothing more nor less than a contradiction of the plain language of the Constitution. The concluding sentence in the twelfth section of Article 5 of the Constitution says: "The failure of the Governor to send to the Senate the name of any person appointed to office, as herein provided, shall be equivalent to a rejection." There was no reason for inserting that provision in the Constitution, unless its purpose was to compel the Governor to send to the Senate, at its next session, the names of his recess appointees, or suffer the consequence that his failure would "be equivalent to a rejection." Much is said in this so-called per curiam about the policy or wisdom — or lack of wisdom — of that provision in the Constitution, if construed strictly. The courts have little or nothing to do with the policy or wisdom of the law. As a matter of fact, though, we know that the purpose — as shown by the positive language — of the twelfth section of article 5 of the Constitution was to compel the Governor to seek the advice and consent of the Senate, with regard to his recess appointments, at the very next opportunity that should present itself; for the rule is that the Governor shall not make any appointment without the advice and consent of the Senate, except during a recess of the Senate, and then only "by granting commissions which shall expire at the end of the next session."